* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60422

Summary Calendar

_____________________

ALLAN STEWART LIPSCHITZ,

Plaintiff-Appellant,

versus

JOE PRICE, Sheriff, Sheriff of Harrison

County, Mississippi; HARRISON COUNTY;

MIKE FAYARD; FIDELITY AND DEPOSIT COMPANY

OF MARYLAND,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Southern District of Mississippi

_______________________________________________________ July 30, 1998

Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Allan Stewart Lip schitz brought a 42 U.S.C. § 1983 suit

alleging claims of cruel and unusual punishment, denial of due

process, exposure to risk with deliberate indifference, as well as

state law negligence against appellees Harrison County, Mississippi

(the County); Harrison County, Mississippi, Sheriff Joe Price and2

Deputy Sheriff Mike Fayard. Lipschitz claimed that while

incarcerated in the Harrison County Jail, he was required to climb

to a point thirty f eet above the floor to perform work, and that

while performing the work he fell and was seriously injured.

The district court dismissed the clai ms against Price and

Fayard finding that Lipschitz knowingly and voluntarily waived any

§ 1983 claim including his right to hold appellees liable for any

injuries he received while participating in the work program. The

court dismissed the claims against the County a s “the claims

against the Sherif f, whose edicts or acts may fairly be said to

represent officia l policy for which the County may be held

respons ible under Section 1983 are thus also waived by the

plaintiff.” Lipschitz complains on appeal that the district court

erred in granting summary judgmen t to appellees. We affirm the

summary judgment but for different reasons than those articulated

by the district court.

Harrison County Sheriff’s Department has a work program in

which selected inmates may serve as trustees thereby receiving more

freedom, as well as other benefits not otherwise enjoyed by the

general inmate population. Lipschitz executed an Inmate Request

form se eking “to work in maintenance or any position available.”

Lipschitz was granted trusty status pursuant to this request. In

order to b egin his work as a trustee, Lipschitz was required to

sign a one-page “Absolute Release” which provides that:1 Lemelle v. Universal Mfg. Corp.

, 18 F.3d 1268, 1272 (5th Cir.

1994).

3 In consideration of the opportunity to participate in the

program and the sentence reduction earned thereby, I do

hereby remise, release, forever discharge and covenant to

hold harmless the Harrison County, Sheriff’s Department,

the Harrison County Board of Supervisors, and Sheriff Joe

Price, their representatives

. . . from any and all

actions, causes of action, claims, demands, damages,

costs, expenses, loss of s ervices, loss of consortium,

loss of companionship, injuries, property claims, death

claims, wrongful death claims, medical payments, and

compensation of every kind, type, and character

whatsoever, on account of or as a result of or in any way

arising out of any

. . . accidents, or injuries which may

be sustained by me as a result of or during the course of

my participation in the work outlined above.

We review a grant of summary judgment de novo applying the

same standard as the district court. Summary judgment is proper

when , viewing the facts in the light most favorable to the nonmovant, no genuine issues of material fact exist that would

necessitate a trial. 1 Appellees argue that the district court’s

grant of summary judgment should be affirmed on three grounds: (1)

Lipschitz voluntarily and knowingly signed the release and waiver

agr eeing to hold harmless appellees for any injuries sustained

while participating in the work progr am; (2) Lipschitz failed to

show that appellees subjected Lipschitz to crue l and unusual

punishment; (3) Price and Fayard are entitled to qualified immunity

from Lipschitz’s state tort claims; and (4) the County is entitled

to sovereign immunity.

Voluntary and Knowing Release.2 Smith v. Sn eed , 638 So.2d 1252, 1259 (Miss. 1994); C ity of

Meridian v. Godwin , 185 So.2d 433, 438 (Miss. 1966).

3 Smith , 638 So.2d at 1261.

4 Under Mississippi law, whether or not Lipschitz’s release was

knowingly and voluntarily executed is a question of fact, not law. 2

Issues of good faith, voluntariness, and duress are questions

properly submitted to a jury. 3 We believe that Lipschitz, in his

deposition, raised an issu e of his voluntary execution of the

release and decline to affirm the judgment on that ground.

Appellees contend, and the district court held, that Lipschitz

voluntarily and knowingly signed the ab s olute release thereby

waiving his rights to pursue legal claims for violations of federal

and state law. Initially, the district court determined that the

record lacked testimony regarding whether Lipschitz voluntarily and

knowingly entered into the release. The court also initially found

insufficient the evidence concerning what procedures and

circumstances surrounded Lipschitz’s obtaining and signing the

release.

Appellees offered into evidence the affidavit and testimony of

Bruce Carver in response to the court’s findings. In his

affidavit, Carver stated that Lipschitz requested to participate in

the work program two days after he was sentenced and that Lipschitz

signed and submitted the Inmate Request Form. Carver claimed that

he advised Lipschitz that “if he was accepted as a Trusty, and was

allowed to participate in this program, that he would have to read5

and sign a Release form, agreeing that in the event that he should

be injured in the course of his duties as a Trusty, that he would

have no claim or lawsuit. . . .” Carver did not actually witness

Lipschitz sign the release, but maintained certainty that Lipschitz

understood the nature of the release.

Lipschitz disputes the appellees and district court. He

contends that although he briefly read the release, he obtained and

signed it in a manner that left him little room for negotiation or

consultation. He was given the release to sign as he walked out

the door to his new assignment. He suggests that he did not truly

understand the significance of signing the release. In his

deposition, Lipschitz testified that “they shoved this little piece

of paper in front of me and told me to sign it if I wanted to be a

trusty, so I signed it,” and that he understood that in return for

signing the release he was getting “freedom.”

In Smith v. Sneed

, Smith filed s uit against the defense

attorney w ho represented him in a criminal prosection, in which

Smith pled guilty to manslaughter. Smith alleged that the attorney

was negligent in failing to obtain an autopsy report that showed

that the alleged victim died of natural causes. Upon confirmation

of the autopsy report, Smith was ordered to be released from prison

but first was required to sign an absolute release of liability.

The trial court determined that Smith had no cause of action

because h e had “freely and voluntarily” signed the release4 638 So.2d at 1261-62.

6

relieving his attorney of any liability. The Mississippi Supreme

Court reversed, holding t hat whether or not Smith freely and

voluntarily executed the release was an issue appropriate for a

jury. Smith did not dispute that he signed the release, but his

deposition left open the possibility that the release was not given

voluntarily.

Similarly, Lipschitz’s deposition leaves open the same

possibility. A reasonable jury could conclude that Lipschitz did

not knowingly a nd voluntarily sign the release. Mississippi law

will not allow enforcement of a release if any element of

“unconscionable advantage is connected with the transaction. And

in passing on the validity of such release, when assailed, all

surrounding conditions should be fully developed, and the relative

attitudes of the contracting parties clearly shown. So that the

jury, in the clear light of the whole truth, may rightly decide

which story bears the impress of verity.” 4

Section 1983 Claims

Summary judgment is proper on Lipschitz’s § 1983 claim. He

alleged that the conditions surro unding his work requirement

constituted cruel and unusual punishment in violation of the Eighth

Amendment and the deprived him of his due process rights under the

Fourteenth Amendment.5 Wi lson v. Seiter , 501 U.S. 294, 299 (1991)(emphasis in

original).

6 Id. at 303-304.

7 Daniel v. Williams , 474 U.S. 327, 328 (1986).

7 The Supreme Court has held that in order for the conduct of

which Lipschitz bases his complaint to be cruel and unusual, it

“must involve more than ordinary lack of due care for the

prisoner ’s interest or safety. . . . It is o bduracy and

wantonness, not inadvertence or error in good faith

, that

characterize the conduct prohibited by th e Cruel and Unusual

Punishments Clause

. . .” 5 Lipschitz failed to submit proof that

Fayard and Price acted with deliberate indifference. 6 Fayard and

Price may have been negligent in not providing more precise

instr uctions as to the specifics of Lipschitz’s work assignment,

but the record does not present an issue that they acted wantonly

as required to establish a violation of the Eighth Amendment.

In addition, it is well established that “the Due Process

Clause is simply not implicated by a negligent act of an official

causing unintended loss of or in jury to life, liberty, or

propert y.” 7 The Supreme Court has asserted that the lack of due

care suggests no more than a failure to measure up to the conduct

of a reasonable person, but to hold that an injury caused by such

con duct is a deprivation within the meaning of the Fourteenth8 Id. at 332.

9 Thibodeaux v. Arceneaux , 768 F.2d 737, 739 (5th Cir. 1985).

8 Amendment trivializes t he principle of due process law. 8

Lipschitz’s § 1983 claim based on cruel and unusual punishment and

deprivation of due process rights must fail.

Lipschitz also claimed that Price established a policy

and/or custom wherein deputies were encouraged or required to make

inmates perform work, and that Price knew of the nature of the work

but failed to provide adequate safety procedures for the in mates

performing the work at the jail. Under § 1983, a supervisory

official such as Price cannot be held vicariously liable for his

subordinates’ actions unless (1) the supervisor affirmatively

participated in acts that caused constitutional deprivations or (2)

the supervisor created unconstitutional policies that causally

resulted in Plaintiff ’s injury. 9 The record does not show that

Price affirmatively participated in the work program as it relates

to Lipschitz. Further, any negligence with a causal nexus to

Lipschitz’s accident was in the execution of the part icular work

assignment, not in the creation of the work program itself.

State Tort Claims

Mississippi law provides appellees immunity from Lipschitz’s

state tort claims. Section 11-46-9 of the Mississippi Code exempts

governmental entities and their employees from liability on claims

based on specified circumstances including injury arisi ng out of10 11-46-9(1)(n).

11 11-46-9(1)(m).

12 11-46-9(1)(d).

13 11-46-5.

9 any work performed by convicted persons; 10 claims aris ing from an

inmate of any jail; 11 or claims “base d upon the exercise or

performance or the failure to exercise or perform a discretionary

function or duty on the part of a governmental entity or employee

thereof, whether or not the discretion be abused.” 1 2 The work

program affording selected inmates the opportunity to be a trusty

is a purely discretionary program. The operations of the program

is dependent upon the officer’s judgment and discretion. Because

Fayard and Price were acting within th eir discretionary powers,

they are entitled to immunity from the state tort claims.

Finally, sovereig n immunity serves as an absolute bar to a

tort cause of action of negligence against a political subdivision

of Mississippi if th e claim arose prior to October 1, 1993. 1 3

Lipschitz’s accident occurred on December 31, 1991. The County is

immune from suit. The district court’s grant of summary judgment

is

AFFIRMED.